San Diego Injury Lawyer Blog

Earlier today, my friend and New York medical malpractice attorney Gerry Oginski posted this link on Facebook to a New York medical malpractice verdict against a podiatrist. The verdict was noteworthy in that the jury awarded $3,000,000 for the victim's pain and suffering ($1.5 million for past pain and suffering and $1.5 million for future pain and suffering).

This sparked a discussion amongst several lawyers from throughout the country about how inequitable tort reform laws are to the victim solely because of where they choose to live or receive medical treatment.

In New York, there is no tort reform cap on pain and suffering damages. Therefore, the $3,000,000 verdict, so long as it is supported by evidence, will not be reduced. However, here in California, we have MICRA--California's tort reform measure which places certain limits and requirements on medical malpractice lawyers and their injured clients. Specifically, the California legislature has placed a cap on pain and suffering at $250,000. It does not matter how badly injured you are, whether you need constant medication to live with moderate pain the rest of your life, had 2 wrong limbs amputated, etc. California has decided that under NO circumstances is anyone's pain and suffering worth more than $250,000 when injured by a doctor.

So, let's assume that we have 2 people who have suffered the same injury and have the same prognosis. The only difference is that one was injured by a New York doctor and the other by a California doctor. The former victim will get compensated $3,000,000 for his pain and suffering while the other will only recover $250,000.

That is just not fair or right.

The tort reform mess gets even worse in other states, such as in Indiana. In the Hoosier State, total damages are capped at $1.25 million for all damages. This is true even if current and future medical treatment exceeds $10 million and lost wages are $3 million or more.

This inequality in results, based solely on geographic location of where the injury occurred, cannot stand. Tort reform has created this and many other unfair results for injured people, all in the name of saving society from runaway litigation costs--which have been proven time and time again not to exist.

One of these days, the public will hopefully wake up and rescind these unfair tort reform laws. Until then, these unequal results will continue.

Continue reading "The Arbitrary and Unfair Impact of Tort Reform" »

Well, it looks like the Nevada Medical Malpractice Reform Law may not see its' fifth birthday--or at least its' damage cap provision may not. Nevada legislators are considering overturning or raising the $350,000 cap for "pain and suffering" damages arising from medical malpractice.

The reason? Recent scandalous, unethical, and dangerous behavior by doctors in the state have led legislators to realize that damage caps hurt consumers while protecting negligent doctors.

We've taken a look at these developments and what it might mean for California's MICRA damage cap of $250,000. You can read more about this California medical malpractice development at our San Diego personal injury lawyer website here.

We've written twice now about Oklahoma's current tort reform efforts led by Republican Senate President Pro Tem Tom Glenn Coffee (R--Oklahoma City), a former medical malpractice defense lawyer. You can read more here and here.

One of the big myths leading the Oklahoma tort reform movement and tort reform in general is that without tort reform, doctors will flee to other jurisdictions with tort reform. The argument goes that with tort reform, medical malpractice insurance rates go down and attract doctors--while high insurance rates drive doctors away.

The problem is that the data does not support the myth. That is the case again in Oklahoma. According to this Edmond, OK news story, the number of Oklahoma doctors is increasing even while the tort reform movement is claiming they are fleeing. In addition, the doctor owned medical malpractice insurance carrier, Physicians Liability Insurance Company, is in the best financial shape in it's three decade long existence. The company is posting record profits and will be the clear winner if the Oklahoma tort reform bill passes limiting injured medical patient's right to be compensated for injuries caused by their professionally negligent doctors.

Like any political issue, it is always important to look and investigate the real data underlying the tort reform movement. Is there a real reason to substantially limit injury victim's right to justice? If so, what is the purported benefit? And, last, is that benefit worth the cost? In almost all cases, the answer to these tort reform questions is "No".

If you or any of your loved ones has been injured or killed due to medical malpractice, contact San Diego medical malpractice lawyer Ross Jurewitz and the San Diego personal injury attorneys at the Jurewitz Law Group at 619-233-5020. You may also contact these San Diego injury lawyers online here.

Dr. Wayne Funk, a longtime psychiatrist in El Cajon, is fighting to keep his medical license after being accused of medical malpractice by the Medical Board of California. The 87-year-old doctor is thought to have been collecting powerful surplus pain killers and sedatives, such as Oxycodone, Diazepam, Lorazepam and Temazepam, from his patients and then redistributing them to other patients as a means of making them cheaper.

Funk, licensed in California since 1954, was subject to an investigation started a year ago by the Medical Board of California and the U.S. Drug Enforcement Agency. According to the accusation filed in the Administrative Law Court, “the investigators observed a counter with numerous sample medications and a basket containing prescription bottles, including controlled substances, which were returned by patients.”

The University of Kansas school of medicine graduate is also being accused of prescribing the anti-anxiety drug, Xanax, to a patient over a two month period without any proper reviews or examinations. The patient had to later seek medical attention from another doctor for detoxification.

During the investigation, Funk surrendered his DEA certificate to dispense controlled substances but denies any wrongdoing. No hearing date has been set.

Continue reading "El Cajon Psychiatrist, Dr. Wayne Funk, Accused of Collecting And Dispensing Surplus Medication Pills to Patients" »

The Oklahoma legislature is currently considering a tort reform bill that would require people wishing to file a civil lawsuit for professional negligence (medical malpractice, accounting malpractice, legal malpractice, etc.) to obtain and attach an affidavit that the person has consulted with a qualified expert who has reviewed the facts of the case. The bill addresses all professional negligence but there can be no doubt that its' main goal is to reduce the number of medical malpractice lawsuits by prohibiting lawsuits without expert support.

The affidavit must include a statement that the expert has provided a written opinion to support the allegation of professional negligence. If the affidavit is not filed, the lawsuit may be dismissed. You can read about the bill here.

The bill, House Bill 1570, is similar to a bill vetoed by Oklahoma's governor last year. Six states, including Georgia, Minnesota, Missouri, Nevada, New York, and Pennsylvania, already require expert certification before filing a professional negligence lawsuit. The cost of having an expert review medical records and provide a written opinion can cost anywhere from $1,000 to $5,000 in most cases. The news story cites an example where an expert charged a medical malpractice victim $12,000 for his pre-litigation expert opinion.

The NewsOK.com news story prompted me to post this provocative tweet on Twitter, which then received several comments from Walter Olson of the legal reform website Overlawyered.com and Chris Davis of the Seattle personal injury law firm, the Davis Law Group.

Continue reading "The Oklahoma Expert Certification Tort Reform Bill: A Good Idea or Does It Not Go Far Enough?" »

James Folsom, 68 of San Diego, faces 26 felony counts for medical malpractice by selling illegal medical devices in San Diego that he claimed would treat a variety of medical conditions through the passage of electrical currents. He faces 140 years in prison and $500,000 in fines if convicted, according to this news story in the San Diego Union-Tribune.

Since 1997, Folsom sold approximately 9,000 devices, such as NatureTronics, AstroPulse, BioSolutions, Energy Wellness, and Global Wellness to both retail and wholesale consumers generating more than $8 million in revenue for himself in the process. Assistant U.S. Attorney Melanie Pierson said that this is the largest case involving illegal medical devices in the 20 years that she has worked as a federal prosecutor in San Diego County.

Folsom is an ex-business partner to a Fallbrook woman named Kimberly Bailey who sold similar devices until convicted in 2002 for planning the torture and murder of another man who was her business partner and lover.

The device sold by Folsom is made up of a small black box with dials, a digital screen, and wires leading to a pair of stainless steel cylinders or metal plates. The box is plugged into an electrical socket, and a patient holds the cylinders or stands on the plates. According to Folsom's marketing, the device destroys diseased cells in the body with the use of electrical frequencies.

Prosecutors also allege that Folsom conducted business under false names and the United States Food and Drug Administration states that the device was never approved for use as a medical device in the United States.

Continue reading "San Diego Man Allegedly Committed Medical Malpractice by Selling Unapproved Medical Devices" »

A Chula Vista woman was sent to jail recently after pleading guilty to committing medical malpractice by performing abortions without a medical license. Bertha Bugarin plead guilty to nine counts of practicing medicine without a license, one felony count of grand theft, and one misdemeanor count of "dispensing dangerous drugs" to her patients at her Chula Vista clinic where she claimed to be a doctor.

The arrest and prosecution of Bugarin occurred after Michael Varga, a Chula Vista Police officer assigned to the department's Special Investigations Unit, interviewed women about abortions they had received at Clinica Medica Para La Mujer de Hoy, a storefront clinic located on Broadway in Chula Vista that catered to low-income, Spanish-speaking women.

Varga's investigation led to identifying Bugarin as the leader of an illegal medical facility and abortion clinic. Bugarin, the investigation found, was a layperson who claimed to be the owner and manager of the Chula Vista cash only clinic, as well as five other similar clinics in Los Angeles and Orange counties.

Continue reading "San Diego Medical Malpractice Caused by Unlicensed Doctor" »

On February 12, 2008, the California Department of Public Health issued a "AA" citation against the Lemon Grove Care and Rehabilitation Center. The Center was cited due to accusations of inadequate care and neglect, leading to a patient's death.

The Director of the California Department of Public Health, Dr. Mark Horton, stated that the citation was issued because the Lemon Grove Center did not adequately protect the health and safety of its residents. Dr. Horton added that the Center failed to provide adequate supervision of its' employees and residents, resulting in one patient suffering fatal injuries.

The citation process of the California Department of Public Health ranges from "B" to "AA" and is a part of its ongoing effort to improve the quality of care provided by California's 1,400 skilled nursing facilities.

The Lemon Grove center was fined $80,000.

The State of California imposes a variety of legal requirements designed to protect those under the care of nursing homes or treatment centers. If you or a loved one has been seriously injured by neglect in a nursing home or while under dependent adult care, call the experienced nursing home abuse lawyers at The Jurewitz Law Group at 888-233-5020.

San Diego patients may benefit from new safety checklists.

The World Health Organization estimates that approximately 500,000 surgical deaths and complications occur worldwide every year due to inexcusable medical malpractice. Too many times patients have signed incorrect surgical consent forms allowing medical staff to incorrectly label them for a planned procedure. Nurses have documented patient safety measures that never actually occurred. Doctors have injected medications that were not labeled on the surgical field. The list goes on.

In order to address this issue, the World Health Organization, along with the Harvard School of Public Health, has launched its first "Safe Surgery Saves Lives" campaign. The study is based on the theory that a one-page surgery checklist developed by several world surgical experts will greatly reduce errors and omissions in the Operating Room.

The study, conducted with participation of 3,955 patients in eight different cities, demonstrated that this low-cost and low-tech tool significantly reduced surgical mortality and morbidity rates.

The annual savings from the prevention of major complications in the Operating Room can be anywhere from $15 billion to $25 billion. Encouraged by this thought, the Institute for Healthcare Improvements and the World Health Organization have initiated the "Sprint" challenge: to have every hospital in the country utilize the surgical safety list with at least one surgical team by April 1, 2009.

Yesterday, Atlanta (Fulton County) State Court Judge Diane Bessen ruled that the Georgia cap on medical malpractice non-economic damages (usually referred to as "pain and suffering") violated the Georgia Constitution. The cap was enacted by the Georgia legislature as part of a sweeping tort reform bill in 2005, known as SB3.

In a 22-page order in the case of Nestlehutt v. Atlanta Oculoplastic Surgery, Judge Bessen ruled:

The Cap Violated the Right to Trial By Jury

"A limit or cap on noneconomic damages, however, invades the right to a jury trial by usurping one of the fact-finding responsibilities of the jury. . . . The imitations imposed by O.C.G.A. § 51-13-1 render the right of the jury to assess damages meaningless when, as here, their determination and award is altered by a legislative determination of what constitutes a “proper” award. The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable."

The Cap Violates the Separation of Powers Doctrine

The Georgia Constitution states: “[t]he legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.”

Judge Besson found:

"In effect, the statute completely disregards the jury’s deliberations and findings in determining the amount of damages which, in their sole discretion, fairly compensates the plaintiff. Instead, in all cases to which it applies, the cap substitutes a predetermined amount of noneconomic damages which the legislature has deemed appropriate. Moreover, it does so arbitrarily, without any consideration of the specific facts and circumstances of the case. Equally importantly, it does so without the option of a new trial for the injured plaintiff. As such, it unduly encroaches upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law."

The Cap Violates Equal Protection

Remembering that the US and Georgia Constitutions provide that everyone shall be subject to the equal protections of the law, Judge Besson wrote:

There is "no rational relationship between statute and the expressed government interest to “promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims … . it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent health care providers from liability. In fact, as recognized by other courts, a cap on noneconomic damages actually diminishes tort liability for health care providers and diminishes the deterrent effect of tort law. . . . While reduction of costs for its constituents is a legitimate legislative objective, there is absolutely no evidence that these objectives are achieved by imposing a financial burden on the most victimized of plaintiffs."

We are just digesting the Order and may add some additional thoughts later.

The question is, what does this increasing trend of state courts finding medical malpractice caps unconstitutional mean for California and its' longstanding cap of $250,000 under MICRA? Will California courts recognize this trend and review MICRA's constitutionality? Will California legislators and the Governor realize that (1) the never indexed for inflation cap and/or (2) the cap itself is unfair to Californians?

We will see.

Hat tip to Atlanta Medical Malpractice Attorney Ken Shigley for bringing this story to our attention.

The California Medical Board permitted a doctor to keep his license after committing medical malpractice by aiding an unlicensed doctor perform illegal abortions. Dr. Mohammad Bararsani, who runs a cash-only abortion business at his Women's Care Center on Crenshaw Boulevard in Torrance, California, was also charged with seven other cases of negligence and incompetence. Associates of Dr. Barasani have committed medical malpractice by performing abortions in San Diego without a medical license.

The charges against Dr. Bararsani arise from his actions to help Edgar Ruiz perform illegal abortions.

This is not the first time Dr. Barasani has worked with people performing illegal abortions. Bararsani, a 1964 graduate of Tehran University School of Medicine, has worked with Edgar Ruiz, a doctor licensed in Nicaragua. He has also worked with Bertha Bugarinwho is awaiting sentencing for posing as a doctor and performing illegal abortions in both Los Angeles and San Diego counties.

For whatever reason, the California Medical Board decided to allow Dr. Barasani to keep his medical license after performing some minor probation tasks. For his probation, he must complete an education course, a medical records class, and is prohibited from supervising physician's assistants.

Although the topic of abortions is usually a lightening rod topic, it is important to remember that it is a medical procedure. It is also a medical procedure that presents risks of infertility, infection, and even death. Quite honestly, it is amazing that the California Medical Board did not do more to protect Californians—and San Diegans—from his practice of using unlicensed doctors to perform abortions on low-income women.

A very good article appeared today on the anewscafe.com website explaining a common plight of California and San Diego medical malpractice victim: they can't find lawyers to take their legitimate injury cases!

The reason, pure and simple, is the California legislature artificially capped damages in medical malpractice cases more than 30 years ago when it enacted the Medical Injury Compensation Act of 1975 ("MICRA") which capped "general damages" (typically called "pain and suffering") at $250,000.

Given that the California Medical Board requires all doctors to publicly report all settlements and judgments over $25,000 and the generally stingy and aggressive nature of insurance companies to drive down claims, almost all medical malpractice cases go to trial. This means that it is very expensive--lawyers representing patients typically spend over $100,000 per case--and time consuming. Moreover, in order for the case to be worth pursuing, it must be a "cap" case (meaning that the jury will definitely award $250,000 if the doctor is found liable).

The practical effect of this law and the marketplace is that injured patients without "cap" cases find it nearly impossible to find a lawyer to help them even when their case has merit.

The Jurewitz Law Group, itself, is extremely selective about which medical malpractice cases it will accept. We typically refer 95% of prospective medical malpractice clients to other firms for a variety of reasons, including that the client does not have a "cap" case.

We hope that this economic reality changes soon. While $250,000 may have been an appropriate damage cap in 1975, it is not today in 2009 after factoring inflation. Injured patients with less than a "cap" case deserve justice just as much as those with "cap" cases.

In a lawsuit filed earlier this week, the City of San Francisco alleged that California insurance companies discriminate against women by charging higher premiums than they charge for men.

The lawsuit argues that the approved health insurance system permits insurance companies to impose "gender ratings" within their pricing policies. Under this system, the City alleges that women pay up to 39% more for health care coverage than men.

The suit pertains to insurance rates for individuals, not group policies.

Currently, ten states outlaw the practice of "gender rating". However, California does not specifically prohibit gender rating.

In response to the lawsuit, spokespeople for the insurance companies stated that their rates are based upon statistics and actuarials that demonstrate that women are more accident-prone and get sick more often than men.

California emergency room doctors have filed a class-action lawsuit against the State of California alleging that California's healthcare system--stretched and burdened by its' thin budget and high demand for services--is about to collapse on itself. The suit comes at a time when hospitals and emergency rooms are closing at alarming numbers, leading to limited emergency care for injured Californians.

The situation is only becoming worse with the State proposing $1.1 billion in cuts to MediCal, California's low-income health payment system.

This is the second lawsuit brought by doctors against the State of California within a year. In the first lawsuit, led by the California Medical Association, doctors were able to obtain an injunction against the State's proposal to cut MediCal reimbursement rates to healthcare providers by 10%. The State instead reduced current reimbursement rates by 1% to 5%.

Emergency room doctors have been particularly hard hit by the healthcare crisis since, unlike other doctors, they cannot chose to turn away low-income patients who rely on MediCal.

Federal preemption of state laws is a dry subject. It puts lawyers and law students asleep.

However, the consequences of preemption can be both real and significant.

The Supreme Court recently in Riegel v. Medtronic decided that a state tort injury actions for defective medical devices are barred when the FDA grants the device premarket approval through the federal Medical Devices Act.

With such a technical ruling, the national media has largely ignored the far-reaching significance of this ruling. However, MSNBC's Keith Olberman recently took on the federal preemption issue in Riegel--and took the opportunity to bash Bush (shocker!)--in his usual one-sided presentation of facts.

Like Ronald Miller of the Maryland Injury Lawyer Blog, who drew our attention to the video, I'm not a big fan of Olberman. In fact, I'd probably agree to any derogatory term used to describe him and he hasn't been funny or clever since his time on ESPN. But he deserves some credit for taking notice of this ruling.

In February of this year, the California Court of Appeals extended the protections afforded to medical doctors under the Medical Injury Compensation Reform Act (MICRA) to emergency medical technicians (EMTs) who are in the process of transporting patients for medical care.

In the opinion by Justice Madeleine Flier, the Court of Appeal held that such protections were warranted since the services provided by EMTs were "inextricably identified" with the health and medical care of their patients. Further, the Court rejected the argument by the plaintiff, a Los Angeles police officer injured while riding along in the ambulance when it was involved in a collision, that MICRA protections could only be extended to those services to which an EMT was licensed. The court held that EMTs were licensed to provide transportation by the Department of Motor Vehicles' special license and, therefore, were still protected by MICRA when involved in traffic accidents while transporting patients.

Earlier this year, the United States Supreme Court held in Riegel v. Medtronic that lawsuits based upon state tort law were preempted (barred) by federal law IF the FDA had granted the alleged defective product "pre-market approval" as a medical device.

The protections given to medical device manufacturers in Riegel may be extended to pharmaceutical drug manufacturers when the Supreme Court hears Wyeth v. Levine later this year.

However, Congress is looking at legislatively reversing the Supreme Court's ruling. Beginning tomorrow, hearings will be held in the House Committee on Oversight and Government Reform to discuss the effect of the Riegel decision and the effect an extension in Wyeth may have.

Write your Congressman and Senators and tell them that legislative reform is needed to provide protections to victims of defectively designed medical devices. If a medical product is defective, a manufacturer should not escape liability simply because the FDA signed off on it--perhaps before the actual defect is discovered after long-term human use.

It's no secret that doctors are key proponents of protections from medical malpractice lawsuits. That's understandable. Nobody wants to be sued and nobody wants to pay damages.

Then again, nobody wants to be hurt by their doctor's breach of the standard of care.

However, this story from West Virginia is very interesting. A West Virginia doctor underwent surgery last month only to afterward develop a severe infection, abdominal pain, loss of consciousness, and septic shock. Clearly believing that he had been the victim of his doctors' malpractice, he sued his doctors and hospital.

Now, as Ronald Miller of Miller and Zois' and the Maryland Injury Lawyer Blog points out, this doctor was undoubtedly in favor of medical malpractice protections and damage caps prior to his surgical injury. Is he now?

This illustrates an interesting point about tort reform: most are in favor of tort reform because they don't believe they will be seriously injured by the negligence of another AND they are more concerned about being sued so they wish for the "protections" tort reform provides--even though they cost that same person the protections the legal system provides.

Doctors, like anyone, are not infallible. Every day, thousands of San Diegans put their trust, their bodies, and their health in the hands of doctors. Fortunately, there are many fine and skilled doctors in San Diego. However, that does not prevent incidents of medical malpractice from occurring--some of which result in lifetime injuries or death.

What most people do not realize is that doctors, unlike almost any other profession, are protected by a damages cap. Since 1975, California law has limited non-economic damages (e.g., pain and suffering) to $250,000. Under this law, NO medical malpractice victim's pain and suffering can be compensated more than this amount.

In 1975, the California legislature enacted the Medical Injury Compensation Reform Act (MICRA) installing this cap and also other protections for doctors found to have committed malpractice. So, for 33 years the cap has remained $250,000--despite the fact that $250,000 in 1975 dollars is now worth $1,012,500! From January 1975 to January 2008, the annual rate of inflation has been 4.33% and $4.05 in 2008 dollars will buy the same as $1 in 1975.

Why hasn't MICRA kept pace with inflation? One reason is that the legislature failed, and continues to fail, to provide a cost of living adjustment (COLA) for MICRA even though COLAs are included in a variety of laws, contracts, and almost any other long-term financial arrangement.

Continue reading "Injured San Diego Patients Deserve MICRA Reform" »

Recently, it was discovered that six cases of Hepatitis C were caused by grossly negligent practices at the Endoscopy Center of Southern Nevada. Among the cost and safety cutting procedures alleged were directions to staff to use syringes and vials of anesthesia more than once--despite the risk of spreading diseases.

Out of this scandal, Southern Nevadans have discovered a problem that should also concern patients in San Diego--how do patients find out about the doctors treating them?

In California, the state Medical Board does not provide any information about past or pending lawsuits for medical malpractice unless a judgment was entered or settlement reached in excess of $30,000. This makes is it difficult for patients to discovery evidence of poor, although perhaps not negligent, performance by their doctors. Due to the scarlet letter this hangs on the chest of a careless doctor, medical malpractice cases, no matter how legitimate or clear-cut, are litigated tooth and nail through trial.

This is a poor way of sharing information with patients about the doctors treating them. It is believed that 90% of all malpractice claims come from the conduct of 10% of doctors. While these may not be exact figures, they do seem logical. Persons who make mistakes or who cut corners tend to repeat these mistakes over and over. For example, in San Diego, a dentist has been successfully sued four times for substandard care.

Continue reading "San Diego Patients Should Know About Their Doctors" »

It's always nice to trumpet the accomplishments of friends and their deserving clients.

Last Friday, a San Diego Superior Court jury awarded $5.7 million verdict to a bedridden San Diego man who claimed a doctor failed to diagnose his skin cancer. Under the Medical Injury Compensation Reform Act, the award will be reduced to $1.9 million. The 1975 state act requires the court to cut general damages to $250,000 in medical-malpractice cases. It is the largest medical-malpractice award in the state this year. The verdict came after a four week trial.

The jury agreed that the plaintiff, Regis M. Reilly, 53, suffered from life-threatening skin cancer after dermatologist James C. Powers failed to remove cysts on the right shoulder that eventually metastasized into cancer.

Reilly's attorney, Denise Asher, said she was pleased by the size of the award because it represented a sum large enough to offset the trauma caused by the misdiagnosis.

"When you see pictures of the cysts, they are football-sized and deep in the tissue," Asher said. Reilly went through a series of surgeries to remove the cancerous tissue. His wife, Karen Reilly, served as his nurse during the multiple surgeries and radiation treatments.

Reilly is confined to his home under around-the-clock medical care and had to be hospitalized during trial.

Good job, Denise.